People v. Martinez

• Decision Date: 20 May 1980
• Docket Number: Cr. 35300
• Citation: 165 Cal.Rptr. 11,105 Cal.App.3d 938
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Robert Gonzales MARTINEZ, Defendant and Respondent.

Page 11

165 Cal.Rptr. 11

105 Cal.App.3d 938

The PEOPLE, Plaintiff and Appellant, v.Robert Gonzales MARTINEZ, Defendant and Respondent.

Cr. 35300.

Court of Appeal, Second District, Division 4, California.

May 20, 1980.

Hearing Denied July 16, 1980.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Lawrence P. Scherb, II, Deputy Attys.Gen., for plaintiff and appellant.

Richard E. Erwin, Public Defender, and H. Bruce Kinnison, Deputy Public Defender, for defendant and respondent.

WOODS, Associate Justice.

The People have appealed from an order granting a new trial after respondent, Robert Gonzales Martinez, was convicted of assault with intent to commit murder in violation of Penal Code section 217; the jury found that he intentionally inflicted great bodily injury in violation of Penal Code section 12022.7; and was armed with a deadly or dangerous weapon in the commission of a felony in violation of Penal Code section 12022, subdivision (a).

Appellant contends that the trial court erred as a matter of law in granting respondent's motion for a new trial.The sole basis for granting the motion for new trial was the trial court's belief that it had erred in instructing the jury in the language of CALJIC 8.11 and 8.31, in that those instructions relieved the jury of the necessity of making a finding that the respondent specifically intended to kill the victim of the assault.We reject the appellant's contention and affirm the granting of the motion for a new trial.

Angel Alamillo, Jr., the victim herein, had attended a football game together with his friends, Mr. Mosqueda and Mr. Ortiz.After the football game, there was an exchange of words between the respondent and Mr. Mosqueda.Mr. Alamillo stood and watched respondent and Mr. Mosqueda exchange words, but no blows were struck.About one-half hour later, Mr. Alamillo and respondent were standing a few feet from each other when Mr. Alamillo noted that respondent was standing in an aggressive manner and glaring at him.He told respondent to come over to where he was, that he wanted to talk to him; respondent replied, "No, you come over here," at which point respondent and Mr. Alamillo walked toward each other.Mr. Alamillo reached out and grabbed the respondent by the shirt, but there was no attempt to strike him.Respondent then stabbed Mr. Alamillo in his right arm and in his stomach on the left side.As a result of the stab wound to the arm, Mr. Alamillo has no extension in the finger of his right hand and some loss of sensation.

Mr. Alamillo was bleeding from his injuries when the respondent backed off and turned toward him, his knife raised, saying, "Stay away from me or I'll kill you."

The knife respondent used to stab Mr. Alamillo appeared to be a kitchen knife with a blade about four or five inches long and about an inch in width.

The respondent was unknown to Mr. Alamillo before this incident.

Mr. Mosqueda testified that, after the stabbing, he saw the respondent with the knife in his hand flashing it around.The respondent was shouting to the people who had surrounded him, "Everybody get back or I'll kill you."Mr. Mosqueda told the respondent to put the knife away and fight like a man hand to hand, to which the respondent smiled and replied, "No, I just fight with knives."

The respondentRobert Martinez testified that Angel Alamillo grabbed him by his chest area and pulled him, tearing off a chain which he wore around his neck.He testified that he became scared and wanted to get away from him, that he pulled out his knife and stabbed Mr. Alamillo in self-defense.Respondent further testified that the knife that he was carrying in his jacket is one which he uses in his work as a bricklayer, to cut open sacks of cement.

Based on this evidence the trial court, over defense objection, instructed the jury that an assault with intent to commit murder may be prosecuted upon an implied malice theory.The instructions objected to are set forth as given, CALJIC 8.11¹andCALJIC 8.31.²

Several California cases and many criminal scholars ³ have acknowledged a distinction between the intent required for the completed crime of murder and that required for a mere attempt.In People v. Mize(1889)80 Cal. 41, 43-44, 22 P. 80, 81, the Supreme Court explained:

". . . 'To constitute murder the guilty person need not intend to take life, but to constitute an attempt to murder, he must so intend.'(Citation.) . . .. (P) . . . .(P) It is doubtless true that, as a general rule, a man is presumed to have intended that which he has done, or that which is the immediate and natural consequence of his act; but, where an act becomes criminal only when it has been performed with a particular intent, that intent must be alleged and proved.It is for the jury, under all the circumstances of the case, to say whether the intent required by the statute to constitute the offense existed in the mind of the defendant."

To the same effect seePeople v. Weston(1917)32 Cal.App. 571, 578, 163 P. 691.

It is the contention of the People, the appellant herein, that a defendant may be convicted of assault with intent to commit murder on the implied malice theory used in connection with consummated second degree murder.In support of this contention, appellant relies on People v. Heffington(1973)32 Cal.App.3d 1, 11, 107 Cal.Rptr. 859, 866 wherein it is stated:

"The crime of assault with intent to commit murder requires proof of a specific intent to murder, but without regard to any distinction between first and second degree murder.(Citations.)Both first and second degree murder require existence of the state of mind known as malice; aside from felony-murder, a specific intent to kill is a necessary ingredient of first degree murder but not of second degree murder.(Citations.)Hence, it is incorrect to say that assault with intent to commit murder requires proof of specific intent to kill; more accurately, one should speak of specific intent to commit murder.(Citations.)"

The court in Heffington held that the evidence of an attempted killing without malice in a trial for violating Penal Code section 217 required a sua sponte instruction on attempted voluntary manslaughter as a lesser-included offense.The court explained that in those cases where the defendant lacked the capacity to harbor malice and therefore could not be convicted of assault with intent to commit murder, this may under appropriate circumstances, be the very basis for having to rely on a conviction of attempted voluntary manslaughter.There is nothing in this analysis which would support the conclusion drawn by the respondent that express malice is no longer required as an element of assault with intent to commit murder.

The CALJIC committee has apparently misinterpreted the Heffington language, since in its "use note" to CALJIC 9.01 it erroneously advises the trial court to instruct on both express and implied malice.⁴

The Heffington opinion does not expressly consider the implied malice portion of CALJIC 8.11.Its attention was directed only to the italicized portion of the instruction pertaining to second degree felony murder which it determined was erroneous based upon "parity of reasoning with People v. Ireland, 70 Cal.2d 522, 538-539(, 75 Cal.Rptr. 188, 450 P.2d 580) . . . ."(People v. Heffington, supra, 32 Cal.App.3d at p. 12, 107 Cal.Rptr. at p. 867.)

The appellant also cites language in People v. Hoxie(1967)252 Cal.App.2d 901, 904, 61 Cal.Rptr. 37, andPeople v. Butts(1965)236 Cal.App.2d 817, 46 Cal.Rptr. 362, for their findings that the intended murder leading to guilt under Penal Code section 217 need only be murder in the second degree.However, as is pointed out by both appellant and respondent, People v. Butts, supra, andPeople v. Hoxie, supra, also stand for the proposition that it is necessary that the People prove beyond a reasonable doubt that the defendant harbored the specific intent to kill.As was carefully reviewed in People v. Hoxie, the Supreme Court has drawn a line between homicide which follows deliberation and premeditation, first degree murder, and a killing preceded merely by a specific intent to kill.Specific intent does not distinguish murder in the first degree from murder in the second degree, other than felony murder or murder by poison, lying in wait or torture.Deliberation, the weighing of consideration, is determinative of degree.Therefore, logic does not dictate that because the defendant need only be guilty of murder in the second degree under Penal Code section 217, it would follow that the intent necessary under this section could be implied from the facts of the case.

The discussion of intent to cause death in People v. Velasquez(1979)26 Cal.3d 425, 162 Cal.Rptr. 306, 606 P.2d 341, as it relates to special circumstances in a death penalty case, represents no change from earlier cases which discuss the requisite intent for murder.Contrary to the contention of the appellant, the murder intent being analyzed in People v. Velasquez, supra, and Estate of Kramme (1978)20 Cal.3d 567, 143 Cal.Rptr. 542, 573 P.2d 1369, ⁵ cited therein, is the intent to do the act which results in the death and not the intent to kill which we find necessary in an assault with intent to commit murder.

In People v. Miller(1935)2 Cal.2d 527, 532-533, 42 P.2d 308, 310defendant had been convicted of attempted murder.His...